Courts reform: we have lift-off

On 13 February 2007, the then Justice Minister, Cathy Jamieson, invited the then Lord Justice Clerk, Lord Gill, to conduct a comprehensive review of Scotland’s civil courts. In September 2009 the report was published and Ms Jamieson’s successor, Cabinet Secretary Kenny MacAskill, accepted its recommendations.

By June 2015, and the signing of the rules and regulations that implement the first tranche of Lord Gill’s recommendations under what became the Courts Reform (Scotland) Act 2014, there was a new Cabinet Secretary in place to sign the commencement orders, and a new Lord Justice Clerk, Lord Carloway, signed the acts of sederunt, Lord Gill having recently retired as Lord President. It has been a long journey, and the reforms have been much debated, but at the start of this legal year, 22 September 2015, a substantial number of significant changes to the civil courts and civil procedure of Scotland will take effect.

These include:

• the introduction of a three-month time limit and a requirement for permission in judicial reviews;
• a requirement for permission to appeal to the UK Supreme Court;
• a new exclusive competence of £100,000 in all sheriff courts;
• the conferring of an all-Scotland jurisdiction on Edinburgh Sheriff Court in personal injuries cases, with the ability to hold civil juries; and
• new provisions for remits between courts and procedures.

Implementing these reforms has required the preparation of a substantial amount of secondary legislation (see panel), to commence provisions of the 2014 Act, make consequential and transitional provision, and make extensive amendments to rules of court. Even as a drafter of secondary legislation, I am aware that it can on occasion seem obscure, unimportant or overly technical. But there is much in these statutory instruments which will be of great importance to those who work in Scotland’s civil courts, and which will need to be considered when advising clients.

This article is designed to help you find the provisions you are looking for, and will explain their importance to your civil litigation practice.

Judicial review

On 22 September, new ss 27A to 27D will be inserted into the Court of Session Act 1988. These require applications for judicial review to be made within three months of the date on which the grounds giving rise to the application first arise. They also require all applications to be given permission to proceed by the court. Permission can be given by the court on the papers or at an oral hearing, and decisions on permission can be appealed to the Inner House.

Chapter 58 of the Rules of the Court of Session, containing the procedure for judicial review, is completely rewritten by the Court of Session Instrument. The new chapter updates the terminology of judicial review procedure: gone are first and second hearings; instead we have substantive hearings, and a preceding procedural hearing. A new form of judicial review petition is prescribed. It requires the petitioner to state explicitly the date on which the grounds arose, to assist with the calculation of the new three-month time limit, and it requires the petitioner to set out in full the reasons why the court should grant permission for the application to proceed.

The new rules have been written to encourage judicial reviews to progress with appropriate speed through the courts. The rules for obtaining permission impose time limits on each stage of the application – both on the parties and on the courts – and at various points the judge is entreated to use new, flexible case management powers in a manner consistent with the “speedy determination” of the petition.

Important provision relating to the three-month time limit is also found in the Commencement Order. Article 4 of that order makes transitional provision dealing with judicial reviews where the application, though lodged after 22 September, relates to grounds that first arose before that date. The effect of this provision is that these applications are treated as if the grounds arose on 22 September, meaning that these judicial reviews will have to be lodged by 22 December 2015 if they are to be made within the time limit. Of course, new s 27A of the 1988 Act allows the court to accept petitions outwith the time limit, where the court considers it equitable to do so.

Articles 6 and 7 of the Consequential Provisions Order make provision for the application of the new permission test to decisions of the UK Upper Tribunal, and for the permission test to be applied by the UK Upper Tribunal when a judicial review is referred to the tribunal from the Court of Session.

Appeals to the UK Supreme Court

On 22 September, s 40 of the Court of Session Act 1988 will be substituted by the 2014 Act, and will require parties to apply for leave to appeal to the UK Supreme Court in civil cases. The Court of Session Instrument inserts a new Chapter 41A into the Rules of the Court of Session, setting out the procedure for getting this permission from the Inner House. A form of application is prescribed, requiring the appellant to set out both the proposed grounds of appeal and their reasons for believing that permission should be granted.

Article 5 of the Commencement Order makes transitional provision relating to applications for permission to appeal. It provides that s 40 continues to apply to appeals against judgments pronounced before 22 September. The need for certification by two counsel and the 42-day time limit in the Rules of the Supreme Court will therefore still apply to these decisions.

The exclusive competence of £100,000

The sheriff courts’ privative limit of £5,000 will be replaced with an exclusive competence of £100,000 on 22 September 2015. Section 39 of the 2014 Act sets out which categories of action this new limit applies to. The basic rule is that where an order of value is sought, and that value (exclusive of interest and expenses) does not exceed £100,000, the action must be brought in the sheriff court. Article 3 of the Commencement Order tells us that this, and the new remit provisions connected to this, only apply to proceedings raised on or after 22 September.

The new exclusive competence is likely to be a more significant practical concern to the civil litigator than the old £5,000 limit was. Accordingly, the Court of Session Instrument inserts a new Chapter 14B into the Rules of the Court of Session, setting out how this new limit should be calculated and how disputes about calculation will be settled. The basic position is that the party bringing the claim will have to set out in their averments why they consider the claim exceeds the exclusive competence of the sheriff court, a requirement that will be particularly important in claims relating to property or claims where the pursuer considers the value of the claim to be unascertainable. The value set out in those averments will be taken to be the value, except where the court determines otherwise.

The all-Scotland personal injury jurisdiction

Section 41 of the 2014 Act allows sheriff courts with an all-Scotland jurisdiction to be established. The All-Scotland Sheriff Court Instrument sets out the new jurisdiction which, from 22 September, Edinburgh Sheriff Court will have. Broadly, this will be jurisdiction in:

• personal injury cases whose value exceeds £5,000;
• workplace-related personal injury cases whose value exceeds £1,000; and
• workplace-related personal injury cases worth under £1,000 which are remitted to the all-Scotland court by the sheriff.

The PI Instrument makes changes to the Rules of the Court of Session, the Ordinary Cause Rules and the Summary Cause Rules to support the introduction of the new exclusive competence and the all-Scotland jurisdiction. It introduces rules to allow for jury trials and to introduce e-motions in the all-Scotland court. The Ordinary Cause Rules are amended to include a new Chapter 36A, providing for a similar type of case management for complex personal injury cases as is currently provided for by Chapter 42A of the Rules of the Court of Session.

Paragraph 11 of the PI Instrument makes transitional provision, meaning that Chapter 36A will only apply to actions raised after 22 September, except where the sheriff, with parties’ consent, directs. While the other amendments made to the Ordinary Cause Rules will not affect existing actions, litigators should be aware that para 11 allows for the new rules on civil jury trials and e-motions to apply to any action remitted to the all-Scotland court, even if initially raised before 22 September.

Remits

Article 3 of the Commencement Order provides that the new remit provision in s 93 of the 2014 Act will not apply to cases raised before 22 September. The PI Instrument also makes changes to the Rules of the Court of Session, the Ordinary Cause Rules and the Summary Cause Rules, relating to the transfer and remit of actions between courts and procedures. This includes specific provision in the Summary Cause Rules allowing for certain cases to be remitted and transferred into ordinary cause procedure in the all-Scotland sheriff court. Paragraph 10 of the PI Instrument retains the existing remit procedures for certain ongoing types of action.

Solicitors’ expenses

The Solicitors Fees Instrument makes the changes needed to the tables of fees to take into account the reforms taking place on 22 September.

What’s next?

Significant though the reforms which will take place on 22 September are, they will not be the end of the upheaval for Scotland’s civil practitioners. In 2016 the Sheriff Appeal Court will start hearing civil appeals; a new type of judge, the summary sheriff, will be introduced; and both small claims and summary causes will be replaced by the new simple procedure. There are other parts of the 2014 Act still to implement as well: sections providing for vexatious litigation orders, orders having effect outside a sheriffdom, and lay representation for non-natural persons are still to be commenced. And in the longer term, the Scottish Civil Justice Council is committed to a comprehensive rewrite of all of Scotland’s civil procedure rules, as recommended by the Civil Courts Review.

In January of this year, Lord Gill called the 2014 Act “the single most important piece of legislation in the field of civil justice for over a century”. The practical, day-to-day importance of the secondary legislation implementing the reforms should not be underestimated either, particularly in the early days of the reforms when many of the transitional provisions contained in them will have a significant effect on clients’ procedural options. This article, I hope, will help the busy practitioner navigate their way through this secondary legislation to find, more quickly, the answer they need.